Ashar, S M --- "Law Clinics and Collective Mobilisation" [2008] LegEdDig 2; (2008) 16(1) Legal Education Digest 5

• Law clinics and collective mobilisation

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Law clinics and collective mobilisation

S M Ashar

14 Clinical L Rev, 2008, pp 401–460

Poor people are not served well by the kinds of advocacy currently taught and reinforced in most law clinics.

At the margins of the field, a growing number of law school clinics and innovative legal advocacy organisations are playing a key role in developing a new public interest practice, one informed by the critical poverty law scholarship of the past several decades. These lawyers and law students support and stimulate radical democratic resistance to market forces by developing litigation, legislative, and community education methods to advance collective mobilisation.

Poor people are besieged by unprecedented market forces with less protection by the state than at any other time in our recent history. Multinational corporate actors and their collaborators in government have advanced an agenda in both developed and developing nations — described by some as ‘neoliberal globalisation’– with three major tenets: (1) weakening and impoverishment of the state so that it is unable to provide basic social protections; (2) privatisation of formerly public functions; and (3) free and rapid movement of capital that facilitates lowered labour and environmental standards. Previously robust civil society organisations, such as unions and identity-based associations, have weakened and increasingly depend upon corporate and governmental patrons.

In response to this environment, a growing number of small groups of poor and working-class people have risen to challenge the reordering of our economy and politics. These resistance movements self-consciously act locally and think globally, allying themselves (actually or symbolically) with grassroots movements outside the United States. This resistance simultaneously opposes neoliberalism and constructs a decentralised ‘radical democratic’ program. In the area in which I work, immigrant workers and organisers have banded together along ethnic, geographic, and occupational lines in ‘worker centres’ to improve their conditions of employment through direct action, litigation, and legislation. These worker centres have drawn extensively in the course of their campaigns on legal resources provided by a small number of law school clinics. Similarly informed and designed law school clinics have also had highly productive collaborations with environmental justice, welfare rights, and community development organisations that are either directly or indirectly related to global social movements.

These organisations, in conjunction with emerging law school clinics and other public interest lawyers, have enacted a program, labeled ‘constrained legalism’ by one scholar, to simultaneously advance their movement-building and law reform agenda. Organisations have turned to these law school clinics, and other new, relatively agile legal entities, because legal mechanisms of resistance from other eras no longer operate effectively in the current context. To be sure, popular mobilisation has been a recessive thread in public interest practice dating back to the earliest social justice movements in the United States. As a host of lawyering theorists and organisers have long urged, increasing numbers of public interest lawyers are now refocusing their efforts on mobilisation, particularly as they perceive the absence of protections the state once offered and the nascent, organised opposition to the neoliberal program.

Schools too have been targets of the pressure that ascendant market forces have aimed at other state and civil society institutions. Reproduction, rather than social critique, forms the core mission of the vast majority of educational institutions. Functionality and efficiency, rather than individual expression and social integration, are the primary values that almost all of these public and private entities adhere to and advance. Increasingly, individuals are viewed as consumers or human resources by corporations and as citizens, voters, or clients of bureaucracies by the socio-legal system. The consequent loss of meaning has a self-reinforcing quality, with individuals further alienated from their own identities and from others. Economic globalisation weakens the power of the state and reduces the accountability of institutions to individuals.

Adult education, especially, is a key institution in determining whether individuals and social movements will be able to contest and resist larger social conditions. Transformative learning in adult education is a means by which to sustain and enrich oppositional movements against the force of functionality and efficiency.

Many of the pioneers of modern clinical legal education brought a passionate commitment to social reconstruction to their work. Many leading clinical legal scholars aspire to, and believe they are engaged in, the work of reconstruction rather then reproduction — through their legal representation of poor clients and through the progressive values that they bring to their teaching. Yet within each exhortation to teach social justice is a concession that competing values threaten to displace the ideals on which law school clinics were founded. The external pressure of the market to train lawyers for designated functions — unyielding in the current political moment — is both a direct and indirect cause of the dilution (and, sometimes, elimination) of the social justice mission of law school clinics.

As a segment of public interest law, law school clinics are marginal providers of legal services, in terms of number of cases on dockets and clients served. Nonetheless, clinical practice exists in a vital dialectic relationship with public interest practice.

The individual case-centred model of clinical legal education is the predominant one in the United States. Many programs have endeavoured to create modules of skills training focused on what is commonly understood to be the common denominator of modern lawyering: interviewing, counseling, and negotiation, along with pre-trial litigation, trial advocacy, and other traditional court-centred activities. This mission configuration yields a predominant, though not exclusive, model of clinical legal education with the following characteristics: (1) intake of individual cases on the basis of triage within a geographic catchment area; (2) a view of cases as isolated vehicles by which to accomplish the primary pedagogical and secondary service goals of a law clinic; (3) induction of students into a style of client-centred practice that prizes maximum engagement with clients on questions of fact and strategy in litigation; (4) intake of cases that are small or simple enough for students to fully (and exclusively) assume the lawyer role; (5) practice in a single mode of advocacy, most commonly litigation, but occasionally in transactional or alternative-disputeresolution work.

Because the individual lawyer-client relationship was regarded by proponents of the case-centred model as microcosmic, clinicians sought to advance social justice by accepting the case of a poor person and then adopting a paradigm of relation that accentuated client decisionmaking autonomy.

The promotion of such learning within law schools has brought resources to clinical programs, but it has also promoted the rhetoric of common denominator clinical legal education, aimed at facilitating the transfer of a limited set of narrowly defined lawyering skills from work with poor clients during law school to paying clients thereafter.

Impact litigation or ‘big case’ clinics constitute a small minority of clinical programs. Their advocates have argued for them with some hesitance, understanding that they are flying in the face of the predominant individual, ‘small-case’-centred model championed by Chavkin and widely considered the most pedagogically appropriate model. Regardless, law schools, especially elite ones, seem to find value in starting appellate and Supreme Court litigation clinics that place faculty and law students in federal courts, collaborating with elite public interest and corporate pro bono lawyers. This model is also attractive for schools that seek to outsource expensive clinical training to adjunct professors who maintain nonprofit public interest practices and use students on larger cases.

Impact litigation clinics have brought class-action cases that include multiple claims, both federal and state (and increasingly, international law as well), and seek changes in the regulation or practices of government agencies. Students work on discrete parts of cases depending on the stage in litigation. Less emphasis is placed on the skills associated with the development of the lawyer-client relationship (interviewing and counseling and theory of the case) and more on acquisition of the differing substantive and procedural knowledge necessary in each phase of litigation.

The focus on individual client empowerment, skills transfer, and lawyer-led social reform cumulatively demonstrate that these approaches betray the aspirations of law clinics. Scarce legal resources are being squandered in the name of pedagogy and in service of advocacy methods with limited impact.

The predominant mode of representation taught in law school clinics alienates clients from their progressive political and racial identifications. Further, it reduces potential political solidarity between law students and their clients to mutual therapeutic validation..

The continued attachment to the case-centred approach — with its general preference for individual clients and against cases associated with organisations and movements — contributes to many law graduates’ lack of recognition of the ways in which racial subordination is reinforced in public interest practice and within the lawyer-client relationship.

The client-centred model, even its more sophisticated versions, is unduly focused on the relationship between the individual lawyer and the individual client rather than viewing these roles as necessarily representative of collectivities. Individual clients are a part of formal and informal movements of resistance and when clinicians make an effort to focus on cases referred by organisations and movements the lawyer-community dynamic is fundamentally changed. Grassroots groups set priorities for legal organisations and racially privileged lawyers learn to have less disabling relationships with their clients.

While clinicians have responded to Jacobs’ call for cross-cultural training to improve counseling skills, her call to recognise the strength of resistance and to give communities a role in setting the priorities of legal organisations has been largely ignored. Clinicians (and public interest lawyers) typically see race when it is essential in a case and merits inclusion in a pleading or affidavit, but are often hesitant in their work more broadly to see clients’ solidarity with other people of colour (and impliedly in opposition to their racially privileged lawyers).

Further, racially privileged clinicians (and again, public interest lawyers, more generally) are likely to fear enmeshment in racial politics when working with community-based collectives. Practice doctrines are moulded and adjusted in accordance with our intellectual and emotional capacities, doctrines shape pedagogical models, and models propagate our capacities — with both strengths and limitations — in the next generation of public interest lawyers. Lack of race consciousness and an implicit fear of politicised racial solidarity is a crucial flaw in prevalent models of clinical legal education.

Although most clinical faculty and students bring political commitments to their work, therapeutics has become the central thrust of instruction and the metric of success in conventional clinical cases, especially in the predominant case-centred model. Whether a case is won or lost matters, but conventional client-centred doctrine creates a guiding assumption that building a trusting relationship between lawyer and individual client will create ‘justice’ within the microcosm — or, in William Simon’s language, the ‘community-of-two’– and improve the chances of victory in court. Instruction in client interviewing, counseling, and building theories of the case is focused on the relationship between lawyer and client, the scope of interaction and collaboration, and the strength of client voice in the case. The cumulative focus on the interpersonal — on developing strategies by which clients will accept and trust lawyers — is grounded in therapeutics.

The critique of therapeutics in conventional clinical practice that I level is not that all clinicians and individual clients value feelings over political, social, and economic facts, nor that trust and connection are unimportant in legal work. Rather, my critique challenges the pedagogical methods and predominant models of practice that emphasise lawyer-client psychology (in the case-centred approach) and narrowly conceived lawyering techniques (in the skills-centred variation) and consequently overlook the relationship between the legal action and the pre-existing political engagements of both lawyer and client.

Clinicians rarely question the place of clinical programs in the legal profession and in the wider terrain of progressive politics. We lament the declining numbers of students who enter public interest practice and the political deactivation of our client base, but we see no programmatic causation in our own work. We refrain from considering whether, as a result of our case intake policies and pedagogical approaches, our programs don’t actually wind up reproducing the social conditions of neoliberal globalisation, accelerating economic and social inequality, and constricting the political space in which poor people might most effectively contest and resist these developments.

Skills training and transfer has been used by clinicians at law schools across the country to build and propagate programs in the face of apathetic or hostile colleagues and administrators. However, programs with whole courses focused on instruction on individual lawyering tasks do not teach students how to be lawyers, they teach them how to undertake a single task. Even clinical programs that rely on a set typology of skills (and limit clinical practice to manageable cases that fit within that pedagogical scheme) risk having students focus on the micro-elements of practice rather than its complexities and consequently obscure larger social justice ends.

Skills training is not a goal that should be set in opposition to case-centredness and other models of clinical legal education. Rather, it is an essential and pervasive element nested within an approach to clinical teaching that privileges an overall understanding of the relationship between law and social change.

The case-centred model of clinical education inculcates a narrow vision of professional role amongst law students. Even politically activated students learn to fear and avoid perceived deviations from the conventional lawyer role, especially in conflicts between a member and the collective or between members.

Case-centred clinics are primarily accountable to students and law school administrators, rather than clients, and fail to serve political collectives. When clinical teachers elevate student interests – defined reductively as case intake to provide students with individual cases over which they will have full responsibility – over those of clients and communities, the meta-lesson to students is that lawyers may dispense with social justice to serve one’s masters.

In the emerging alternative model of clinical legal education animated by collective mobilisation that I espouse, political and social vision shape intake and pedagogy, rather than being shaped by them.

At the heart of this alternative approach is the conviction that clinics should select cases and projects that support the mobilisation efforts of groups working to change the social order. Like all public interest practitioners, clinics should ask three questions of any proposed case or project: (1) whether it fits into a broader campaign for reform with other similarly situated clients; (2) whether the representation will help create or sustain some form of collective resistance; and (3) who will stand for (or work with) the population and its cause when students graduate and clinics move on to new cases and causes. With organisational partners, the legal case or project is part of a larger mobilisation effort that continues after the case or project is complete.

The list of basic legal functions of a lawyer for a movement organisation is not much different from that of a lawyer for a small corporation or a small trade association in a capital city.

Students do legal research, write memoranda, and counsel individual and organisational clients. In non-litigation cases, students draft reports, legislative language, and memoranda. Students prepare and accompany members of client organisations to meetings with legislators.

We construct our class syllabus at the beginning of each semester based on our estimate of what we think will be happening in our fieldwork. We choose to do substantive law ‘boot camp’ classes at the beginning of each school year, so as to place students in their fieldwork as soon as possible. We take students through a sequence of classes on basic legal functions, including client interviewing, work with interpreters, counseling, theories of the case, fact investigation, and legal drafting. We teach a unit on trial skills because one or more of our immigration defense cases goes to trial at some point during the year. Although we do not subscribe to a set chronology of class units or have a check- off list of topics, there is greater similarity than difference in the syllabi with which I have worked over the years.

Our classes are undoubtedly not as orderly as that of clinicians in the case-centred approach or as complete and thorough as those who subscribe to the skills-centred approach, but we see advantages in an ‘open source’ syllabus that we encourage students to construct with us through their fieldwork experience. We do not neglect efforts to create justice within the microcosm between lawyer and client, even as we focus on how an individual case fits into a larger struggle for social justice. We try to use students’ positive and negative feelings about their clients, cases, and the socio-legal context to stimulate collective learning. In this way, we try to bring the transformative learning method to all of our work, including instruction on basic legal functions.

Better public interest lawyers no longer operate in a single forum or use a single mode of advocacy. These lawyers develop campaigns on parallel tracks, including litigation, policy and legislative advocacy, community and public education, media advocacy, and international or transnational advocacy. Nonetheless, our organisational partners, already engaged in other mobilisation and advocacy efforts, seek counsel to file cases before many different kinds of courts and agencies. These organisations are opportunistic and develop their campaigns through as many means as possible. They understand that each legal and political advocacy method is contingent and ineffectual in isolation. We find that litigation skills translate into the policy advocacy arena (and back) in interesting ways. Excellent lawyering crosses modes of advocacy and draws upon overlapping sets of skills.

In this context, students must think tactically and strategically. Some in clinical education argue that we can rarely teach strategic thinking in live-client cases and must resort to simulated cases for this purpose. However, the best way to draw meaningful lessons on strategy in public interest practice is to work on actual cases with mobilisation potential. In classes and supervision meetings, we consider varying means by which to achieve the mobilisation goals of an organiser or group of clients. We consciously broaden our sense of the range of successful outcomes in our fieldwork, resisting the assumption that victory in court is the sole path to social justice. In this context, litigation is only one tool in the arsenal of the public interest advocate.

Conventionally, clinicians’ lessons on strategic thinking are focused on the use of particular tactics in a single mode of advocacy preselected by the clinical instructor. I have questioned whether it makes sense to place the weight of complex decision-making on first-time lawyers. However, I have been impressed by the capacity of students to consider strategic questions. The growing literature on the multiple competencies of successful lawyers provides some insight on why we have been able to focus on strategy. Some students enter law school with sophisticated tactical and strategic thinking skills. Clinic cases with mobilisation potential provide an opportunity for those students to apply such skills in a new context. With proper supervision, less experienced students learn from those with specific experiences and competencies through all aspects of team lawyering but specially in the area of strategic and tactical thinking.

‘Thinking like a lawyer’ requires a broad understanding of multiple frames of reference, as we participate in the strategic construction of advocacy positions in court and before legislatures and agencies. However, our training often narrows our thinking and organisers challenge us to think outside of our familiar and canonical frames of reference. Organisers help build innovative theories of the case and expand the scope of fact investigation. This form of strategic thinking and consciousness of multiple frames of reference in clinical fieldwork has great pedagogical value in teaching students how to practice reflectively.

In this work — both non-litigation advocacy with groups that have an organising mission and litigation on behalf of individual members of political collectives — law students are pulled between conventional interpretations of their role as shaped by the rules of the profession and the needs of organisers and activists. This context is a pedagogical gift for clinical teachers, as we help students grapple with ethical rules using immediate and urgent problems from their fieldwork. These questions undermine the formalism of the rules of professional responsibility and cause students to develop interpretations that both accommodate and shape their relationships with individual and organisational clients. Anti-formalistic, moral dialogue — proposed by leading clinical scholars as central to effective counseling in the client-centred model — takes place amongst students and with supervisors and clients.

The movements with which we work have sophisticated conceptions of racial identity and cross- racial solidarity. Race, especially race-based resistance to the dictates of the socio-legal system, is not left at the door of the interview room. Movement organisations seek to channel modes of resistance toward cross-racial (and cross-lingual) political action. Lawyers are the beneficiaries of this approach and law students do not graduate from our program with simplistic or suppressed associations between ‘difficulty’ and clients of colour. The process of building trust in race-differentiated lawyer-client relationships is never obviated. However, the assumptions that both lawyers and clients have about each other as they enter the relationship is significantly altered and improved from the individual case-centred model of representation.

Instead of holistic practice by lawyers, we think that poor people need solidarity with each other and consequent political power and we provide legal services that advance that project. We have given up the illusion that lawyers might be able to liberate clients, one by one.

We use the insights of transformative learning theory to advance acquisition of transferable legal skills and reject clinical models that propose to focus courses on a single legal function. Our students learn how to draft complaints and take depositions in the context of social justice campaigns and ongoing relationships with clients, organisers, and organisations. The role is fluid and each relationship is negotiated with empowered clients and designed to accomplish specific goals.

Clinical legal educators can use transformative learning in the context of the representation of collectives to enhance the motivation and autonomy of students, clients, collaborators and ourselves. Above all, we must teach ourselves and our students to define the role that we intend to fill as lawyers and citizens, rather than being unconsciously inducted into a role set by the market.

Clinical legal education should support collective mobilisation and can do so without abandoning its central mission of educating law students for practice. There is some inevitable tension between client and student concerns, but even this can be a learning tool, if teachers are able to conceptualise the conflict for students and facilitate reflection.

The alternative model enhances pedagogy by more intentionally integrating transformative learning opportunities in fieldwork. Students undertake fieldwork in the context of a wide range of types of advocacy and exposure, including street demonstrations, meetings with politicians, worker meetings, and oral advocacy before judges hostile to collective action. The lessons students draw from these practice settings about both legal advocacy methods and the sociolegal system become embedded in their long term memory.

Clinical fieldwork in support of collective mobilisation reconfigures and renews pedagogy rather than abandoning it. Clinical education should not construct ironclad pedagogical systems rooted in practice settings that no longer exist, nor can it remain impervious to change. Fixed pedagogical notions should not be used to shield clinical programs and law schools from the messiness of politics and social justice outcomes.

Teaching students about shared professional judgment seems to prepare them for the realities of practice, rather than for a version that is only depicted in the formalism of the professional responsibility rules.

By lawyering in collaboration with organisers, students begin to learn how to delineate between legal and non-legal advice and counseling. Through joint relationships with clients (rather than a false canonical picture of practice as being of two people alone in an interview room), professional role and the proper exercise of professional judgement is sharpened rather than obscured.

Most law schools are dominated by private bar ‘benefactors’ and boards of trustees. Even public law schools rely more heavily on private fundraising. Moreover, the desires and preferences of law students and law professors, even liberals, are shaped by dominant market forces. Because the alternative model of clinical legal education that I propose has a significant and foundational normative vision critical of those forces, it is unclear whether it could take root within law schools and flourish.

Although the language of critique often renders both the subject and the alternative as monolithic visions, it is not my intention to argue for a single hegemonic approach to clinical legal education. I argue most essentially for an increased porosity and permeability of law clinics to the influence of organisers and community-based organisation. Through a dedication to collaboration, clinicians and organisers will derive a range of legal needs that demand multiple models of service provision, from individual casework to impact litigation and community education to policy advocacy. Although I do not believe that all experiments in clinical legal education are identically responsive to the needs of poor and marginalised people, there is no question that innovation in the provision of legal services is an essential role of law clinics within the firmament of public interest law and that multiple approaches to advocacy and service provision will best serve students, lawyers, and clients.